Oliver Bass Lumber Co., Inc. v. Kay & Herring Butane Gas Co., Inc., 818

• Decision Date: 29 May 1975
• Docket Number: No. 818,818
• Citation: 524 S.W.2d 600
• Parties: OLIVER BASS LUMBER COMPANY, INC., Appellant, v. KAY AND HERRING BUTANE GAS COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 600

524 S.W.2d 600

OLIVER BASS LUMBER COMPANY, INC., Appellant, v. KAY AND HERRING BUTANE GAS COMPANY, INC., Appellee.

No. 818.

Court of Civil Appeals of Texas Tyler.

May 29, 1975.

Sallas, Griffith & Meriwether, Gus E. Meriwether, Crockett, for appellant.

Granberry & Hines, F. P. Granberry, Crockett, for appellee.

DUNAGAN, Chief Justice.

This is an appeal from a summary judgment which was granted in favor of plaintiff-appellee Kay and Herring Butane Gas Company, Inc., against defendant Oliver Bass Lumber Company in an action based upon a sworn account. The parties will be referred to as they appeared in the trial court.

Plaintiff brought suit on a sworn account against defendant for $1,991.25, the value of 22,125 gallons of propane, which plaintiff allegedly sold defendant during March, 1972. Defendant filed verified pleadings which included its original answer and a cross-action. In addition to defendant's general denial it specially denied that:

(1) Plaintiff delivered all of the propane mentioned in its original petition,

(2) Plaintiff delivered 22,125 gallons of propane because plaintiff could not have delivered in excess of 19,130 gallons of propane during March, 1972, and

(3) Defendant owes plaintiff the sum of $1,991.25 for propane delivered during March, 1972, because the amount owed to plaintiff for propane delivered in March, 1972, could not exceed $1,721.17. Further, defendants maintained that it was entitled to an offset of $1,794.97 for overpayment to plaintiff for propane delivered during December, 1971, and January and February, 1972.

In a sworn affidavit that follows defendant's answer and cross-action, Oliver Bass, Jr. stated 'That he has read the foregoing Answer and Cross-Action and that the facts contained therein are within his personal knowledge and that the same are true and correct.'

Plaintiff filed its motion for summary judgment accompanied by two supporting affidavits. One of the supporting affidavits was made by Laura Coon, who keeps records of sales made by the plaintiff while the other supporting affidavit was made by F. P. Granberry, who is a partner in the law firm that represents the plaintiffs. Oliver Bass filed an affidavit in opposition to plaintiff's motion for summary judgment which stated 'That the statement contained in Plaintiff's Original Petition and in the Affidavit of Laura Coon that Plaintiff delivered 22,125 gallons of propane to Defendant during the month of March, 1972, is not true and correct and that affiant personally knows that Plaintiff could not have delivered in excess of 19,130 gallons of propane during the month of March, 1972, to the Defendant.' After having considered the pleadings and supporting affidavits of both parties, the trial court found that there was an absence of any genuine issue of material fact and granted summary judgment in favor of the plaintiff.

We affirm.

Defendant maintains in its third point that the trial court erred in holding that defendant's original answer is insufficient under Rule 185 ¹ for two primary reasons.

First, defendant's pleadings do not include a sworn denial that sufficiently traces the language requirements of Rules 93(k) and 185 . Rule 185 provides that in a suit upon a sworn account the defendant must file a verified answer,

'* * * stating that each and every item is not just or true, or that some specified item or items are not just and true * * *.'

If a defendant files an answer not in compliance with Rules 93(k) and 185, he will not be permitted to deny the plaintiff's claim or any item included within the claim. Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App., Houston, 14th Dist., 1973, writ ref'd.). A denial of a verified account must be in the terminology of Rule 185, and courts are extremely exacting in the nature of the language used in sworn denials of such accounts. Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App., Dallas, 1973, writ ref'd., n.r.e.); A. G. Solar v. Petersson, 481 S.W.2d 212, 215 (Tex.Civ.App., Houston, 14th Dist., 1972, no writ); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App., Houston, 14th Dist., 1971, n.w.h.); Akins v. Coffee, 376 S.W.2d 953 (Tex.Civ.App., Dallas, 1964, writ dism.).

Other than a general denial in its answer, appellant does not seem to deny that 'each and every item is not just or true.' In other words, appellant does not seem to maintain that none of the alleged propane was delivered. (A sworn general denial is clearly inadequate compliance with Rules 93(k) and 185.) A. G. Solar v. Petersson, supra. Instead, appellant maintains that not all of the alleged 22,125 gallons of propane were delivered and that not all of the alleged $1,991.25 was owed because plaintiff could not have delivered in excess of 19,130 gallons which would have been valued at not in excess of $1,721.17. Therefore, defendant's complaint is leveled at 'some specified item or items' and will be so treated in our discussion.

Rule 93 states that 'A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit. * * * (k) That an account which is the foundation of the plaintiff's action, and supported by the affidavit, is not just; and, in such case, the Answer shall state that each and every item is not just or true, or that some specified item or items are not just and true.' (Emphasis added.) Nowhere in its answer, cross-action and verifying affidavit, or even affidavit in opposition to summary judgment, does defendant come close to making a sworn denial in the language required by Rules 93(k) and 185. The nearest defendant comes to using the language required by Rules 93(k) and 185 is not even in its answer, as is required by Rule 93(k), but is in its affidavit in opposition to summary judgment in which it states 'That the statement contained in Plaintiff's Original Petition and in the Affidavit of Laura Coon that Plaintiff delivered 22,125 gallons of propane to Defendant during the month of March, 1972, is not true and correct * * *.' Nowhere in its answer, cross-action and verifying affidavit, or even affidavit in opposition to summary judgment, does defendant deny the 'justness' of plaintiff's claim. If a defendant's sworn denial is leveled at each and every item, he must state that 'each and every item is not just Or true.' (Emphasis added.) But, if a defendant's sworn denial is leveled at some specified item or items, he must state that 'some specified item or items are not just And true.' (Emphasis added.) McDonald v. Newlywed's, Inc., 483 S.W.2d 334 (Tex.Civ.App., Texarkana, 1972, writ ref'd., n.r.e.); Duncan v. Butterowe, Inc., supra. 'Every word of a statute (or rule) is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase and Word be given effect if reasonably possible.' (Emphasis added.) Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (1957); Findley v. Calvert, 509 S.W.2d 393 (Tex.Civ.App., Beaumont, 1974, n.w.h.). 'Ordinarily the words 'and' and 'or,' are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a disjunctive nature.' Board of Insurance Commissioners v. Guardian Life Inc. Co., 142 Tex. 630, 180 S.W.2d 906, 908 (1944); Employers Casualty Company v. Patterson, 344 S.W.2d 199, 201 (Tex.Civ.App., Amarillo, 1961, n.w.h.). 'And' means 'also' or 'in addition to.' Therefore, we believe that if a defendant is denying some specified item or items, the rule makers intended for him to deny both the 'justness' and the 'truth' of the plaintiff's claim. Although 'just' and 'true' can be synonyms, they can have somewhat different meanings. 'Just' can mean 'fair' while 'true' can mean 'correct.' See First State Bank of Teague v. Hadden, 158 S.W. 1168, 1170 (Tex.Civ.App., Dallas, 1913, no writ) and Hughes v. Potts, 39 Tex.Civ.App. 179, 87 S.W. 708, 709 (1905, writ ref'd.). We do not believe that the rule makers would have been intentionally redundant by including two words, side by side, with identical meanings. It appears that the rule makers intended for the words 'just' and 'true' to have somewhat different meanings and that if a defendant's denial is only leveled at some specified item or items, then it seems that the rule makers intended for the defendant to deny both the 'just...